2014 (9) TMI 63 - AT - Customs

Suspension of CHA License - Regulation 20(2) of CHALR 2004 - Held that - Department that report was received on 01.01.2013 to pass the suspension order dated 30.01.2013, Appellant pleads that when no order was passed under Regulation 20 (2) of CHALR 2004 within 15 days of receipt of the report, there is violation of the said Regulation, since 15 days time is stipulated by law on that behalf. According to appellant, the law laid down by Hon ble High Court of Delhi in the case of Schankar Clearing & Forwarding vs. C.C. (Import & General) reported in 2012 (8) TMI 760 - DELHI HIGH COURT was not followed by respondent Revenue. The report of investigating agency dated 09.03.2011 resulted in adhoc suspension of the CHA on 10.10.2011. There after, power under Regulation 20(2) was exercised to pass the order dated 24.01.2012 which was post decisional hearing order. The appellant in that case came to Tribunal against order dated 24.01.2012 with grievance of violation of the Regulations of CHALR 2004. Against order of dismissal of appeal by Tribunal, Hon ble High Court held that both the orders i.e. order dated 10.10.2011 and 24.01.2012 were unsustainable being contrary the provisions to CHALR 2004 and those orders were set aside. The authority was allowed liberty to proceed with the enquiry and pass any order in accordance with law after granting opportunity to the appellant following procedure of law in that case. - Decided in favour of CHA.

Summary

Issues involved:
1. Compliance with Regulation 20(2) of CHALR 2004 regarding suspension order.
2. Failure to provide documents to the appellant.
3. Violation of law as per the judgment in the case of Schankar Clearing & Forwarding vs. C.C.
4. Unsustainability of orders dated 30.01.2013 and 07.11.2013.
5. Comparison with the judgment of the Hon'ble High Court in a similar case.

Analysis:

Issue 1: Compliance with Regulation 20(2) of CHALR 2004 regarding suspension order
The judgment discusses the timeline of events leading to the suspension order dated 30.01.2013 and subsequent proceedings. It highlights the importance of adhering to Regulation 20(2) which empowers the Commissioner to suspend a license pending an inquiry in cases of misconduct without prior show cause or hearing. The appellant argued that the suspension order violated the regulation as it was not passed within 15 days of receiving the report, citing the importance of immediate action as per the law.

Issue 2: Failure to provide documents to the appellant
The appellant's counsel contended that the documents requested by the appellant were not supplied, creating a situation where the appellant was kept in the dark regarding the time limit for passing the suspension order. This lack of transparency in providing necessary documents for defense raised concerns about procedural fairness and the appellant's right to a proper defense.

Issue 3: Violation of law as per the judgment in the case of Schankar Clearing & Forwarding vs. C.C.
The judgment references the case law of Schankar Clearing & Forwarding vs. C.C., emphasizing the need for immediate action within 15 days of receiving a report in cases warranting suspension. The failure to adhere to this timeline was considered a violation of the law, as highlighted by the High Court's decision in the mentioned case.

Issue 4: Unsustainability of orders dated 30.01.2013 and 07.11.2013
The appellant challenged the sustainability of the orders dated 30.01.2013 and 07.11.2013, arguing that they did not comply with the provisions of CHALR 2004. The judgment ultimately set aside the suspension order dated 12.10.2011 as confirmed on 24.1.2012, indicating that it was contrary to the regulations and could not be sustained.

Issue 5: Comparison with the judgment of the Hon'ble High Court in a similar case
The judgment draws a parallel with a previous case where orders were set aside due to non-compliance with CHALR 2004 provisions. The High Court's decision in that case guided the court to conclude that the orders under appeal were unsustainable and should be set aside, allowing the authorities to proceed with the inquiry while ensuring compliance with the law and due process.

In conclusion, the judgment scrutinized the procedural aspects of the suspension orders, emphasized the importance of timely action as per regulations, and highlighted the necessity of providing necessary documents for a fair defense. The comparison with previous case law underscored the significance of upholding legal provisions and ensuring procedural fairness in such matters.